Professional negligence in tort

From Donaghue and Stevenson to
Burgesses and Lejonvarn

Creating a landmark at a snail's pace

Mr and Mrs Burgess pursued a claim against their once
neighbour, Mrs Lejonvarn, over a period of some 5 years.Initially the dispute centred on matters of
law.Starting in the Technology and Construction
Court (TCC), at a hearing of preliminary issues, the claim in contract was dismissed
leaving the Burgesses to pursue a claim in tort for professional negligence.From the TCC’s ruling, it appeared that potential
liability for professional negligence in tort could be greater than liability
for professional negligence in contract.

Moving on to the court of appeal, the lower court’s ruling
was upheld with qualifications.The
clear guidance handed down by the court of appeal was that, while the defendant
had a duty in tort to act with reasonable skill and care when performing a
service, she had no duty, absent contract, to provide any services.

Thus far the courts had made no definitive ruling on the
defendant’s supposed negligence.All
that the best part of 5 years had established was that there was a case to be
heard.The case was reported in local
and national press and was much written about by the legal profession.It had become a landmark case on professional
negligence in tort without regard to the fact that the claims had not been substantiated.

last July the case returned to the TCC for a final hearing
where the outcome turned on the facts.The
claimants fielded 11 witnesses of whom two were expert witnesses.The defendant relied on two witnesses of fact
and two experts.Additionally, there was
one jointly appointed expert witness.In
stating their case, the claimants had relied on the opinions of a builder, a
surveyor and an engineer who had seen the disputed work but who were not called
as witnesses.The claimants’ quantity
surveying expert had a dual role as a witness of fact and as an expert
witness.As a witness of fact, he
provided his recollections of what he had observed of the work and separately,
as an expert witness, he opined on matters of cost.

Long before this last trial, the supposedly deficient
work, landscaping to a private back garden, was subject to substantial rebuilding
to a new design.The claimants’ architect
expert had not inspected the garden before this.I, as soon as I was appointed, had visited
the site and recorded the relevant work before it was altered.

The defendant was accused, as architect / project manager,
of negligence in managing, budgeting, cost control, supervision, design and information
production.The claimants’ witnesses did
not distinguish between that part of the work which was done while the
defendant was involved and that part which was built later.From inspection I could clearly distinguish
the two and advise the court that no part of the work done while the defendant was
involved evidenced a failure by the defendant to act with reasonable skill and
care.This experience affirms the
importance of appointing experts in good time and enabling them to act
effectively. Based on the facts
supported by informed expert opinion, every part of the claim was dismissed.